TERMS OF SERVICE: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE AND USING THE SERVICES. BY CHECKING THE “I AGREE” BOX YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (3) YOU ARE AT LEAST 18 YEARS OF AGE, AND (4) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT AND, BY SO CLICKING, THIS AGREEMENT CONSTITUTES YOUR BINDING AND ENFORCEABLE OBLIGATIONS.
IF YOU ARE OF LEGAL DRIVING AGE AND AT LEAST 15 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THIS AGREEMENT AND YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF THROUGH THE REGISTRATION PROCESS. IF YOU ARE A PARENT OR GUARDIAN ENTERING THIS AGREEMENT FOR THE BENEFIT OF A CHILD OVER 15, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE SERVICE AND THE SOFTWARE, INCLUDING WITHOUT LIMITATION ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR, AND YOU AGREE ON YOUR AND YOUR CHILD’S BEHALF THAT YOU AND YOUR CHILD SHALL BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
IF YOUR EMPLOYER HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH ZOOMSAFER TO MAKE THE SOFTWARE AND THE SERVICE AVAILABLE TO ITS EMPLOYEES, THE TERMS OF THAT LICENSE AGREEMENT WILL CONTROL OVER ANY PROVISIONS IN THIS TERMS OF SERVICE THAT ARE INCONSISTENT WITH SUCH LICENSE AGREEMENT. YOU SHOULD CONTACT YOUR EMPLOYER TO DETERMINE WHETHER IT HAS A SEPARATE WRITTEN LICENSE AGREEMENT IN PLACE WITH ZOOM SAFER INC. NOTHING IN THESE TERMS OF SERVICE SHALL MODIFY OR CHANGE THE TERMS OF ANY EXISTING SEPARATE WRITTEN AGREEMENT BETWEEN ZOOM SAFER INC AND YOUR EMPLOYER.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU WILL NOT BE REGISTERED TO USE OR HAVE ACCESS TO THE SOFTWARE OR THE SERVICE.
Subject to your compliance with the terms and conditions in these Terms of Service (this “Agreement”), Zoom Safer Inc. (“ZoomSafer”) will make available to you the ZoomSafer service (the “Service”), which includes the ZoomSafer client and web application software, together with any updates, revisions, error corrections and enhancements that may be provided by ZoomSafer, and any manuals, handbooks and other written or electronic material accompanying the Software (the “Software”). If you purchase the Premium Product (as defined below), the term “Service” will include any additional services that are included in the Premium Product, and the term “Software” will include any additional software provided with the Premium Product.
1. Limited License. Subject to your compliance with the terms and conditions of this Agreement, ZoomSafer hereby grants to you a non-exclusive, non-transferable, revocable, non-sublicensable, limited license to download, install, and use a single copy of the Software on one mobile device for your personal, non-commercial use.
2. License Restrictions. You will not (a) use the Software except as expressly permitted in this Agreement; (b) transfer the Software from your registered mobile device to any other mobile device, including any other mobile device that you own, except as otherwise provided by Section 6.c. of this Agreement; (c) change the telephone number associated with the mobile device upon which the Software is installed, except as otherwise provided by Section 6.c. of this Agreement; (d) permit any third party to use the Software; (e) market, sell, rent, lease, disclose, distribute, sublicense or otherwise offer or transfer the Software (or any portion thereof); (f) make copies of the Software; (g) access the Service through any means other than the Software on the designated mobile device (as provided during the registration process) and through the ZoomSafer website; (h) use the Software (or any portion thereof) for commercial time-sharing, service bureau or any other commercial use; (i) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code for the Software, or use the Software for any evaluation of the structure or design of the Software or any other form of competitive analysis, or permit any third party to do any of the foregoing; (j) modify or create any derivative works based on the Software; or (k) alter, remove or obscure any copyright, trademark or other protective notices contained in or on any portion of the Software or audibly announced by the Service.
3. Software and Service Description. The Software and Service provides a number of functions intended, among other things, to reduce distractions from your mobile device while driving. A description of the Service is set forth in more detail at www.zoomsafer.com. ZoomSafer reserves the right, in its sole discretion and without prior notice, to modify or discontinue the Services or the Software at any time for any or no reason. ZoomSafer reserves the right to provide announcements, advertising and promotions from ZoomSafer and/or third parties as part of the Service.
4. Special Note About the Software and Service. Driving is an inherently dangerous activity that requires your full attention. Any use of a mobile device while driving, even use of such mobile devices while the Software and Service is activated, diverts your attention from the road and could result in an accident. Finally, using a mobile device while driving, even use of such mobile devices while the Software and Service is activated, may be illegal in certain jurisdictions. You are responsible for knowing the laws of the jurisdiction in which you drive, and for complying with such laws.
5. Premium Product. The ZoomSafer Premium Product featuring the VoiceMate Service (the “Premium Product”) is a premium part of the Software and Service for which additional payment is required and that gives you access to additional functionality beyond the standard version of the Software and Service. If you at any time exceed the average use of the Premium Product as compared with other subscribers by a significant amount, as solely determined by ZoomSafer, we reserve the right to terminate your premium VoiceMate Service.
6. Purchase Options. If you purchase the Software and Service through another web site, then the terms of purchase of that web site may apply instead of this Agreement. To use the Software and Service, you currently have several payment options (as each is more fully described below). Payment methods supported by ZoomSafer include credit-card. ZoomSafer reserves the right to stop accepting credit cards from one or more issuers. Payment is made in advance on the then-current prices as determined solely by ZoomSafer.
a. One-Time Payment. Purchasing the Software and Service with a one-time payment gives you access to the Software and Service on a single mobile device for as long as we support that software version, for a minimum of two (2) years from date of purchase. Additional payment may be required to access newer versions of the Software and Service. Licenses are non-transferrable between parties.
b. Limited-Term Payment. Purchasing the Software and Service for a limited term gives you access to the Software and Service on a single mobile device associated with a single telephone number for the duration specified when you make the purchase. Additional payment may be required to access newer versions of the Software and Service or to access the Software and Service on a new device or with a new telephone number.
c. Subscription Payments. You may purchase the Software and Service as a recurring subscription, either monthly, annually or at such other intervals as ZoomSafer may offer from time to time in our sole discretion. If you purchase an annual subscription, notwithstanding anything herein to the contrary, you may transfer the Software and Service to other mobile devices that you own and use it with other telephone numbers that may become associated with your mobile devices during the term of your subscription, provided that for each subscription purchased, the Software and Service may only be used with one device and one telephone number at any given time.
7. Cancellation. You may cancel your ZoomSafer service by sending an email from the email account used during subscriber registration (or referencing that account if sent from a different email account) to support@zoomsafer.com providing your name and mobile telephone number, current billing address, along with the reason for termination. After any free use of the Software and Service for any specified free period, all payments to ZoomSafer are non-refundable. Cancellations are subject to ZoomSafer’s cancellation policies then in effect.
8. Ownership. The Software and Service is licensed, not sold. As between you and ZoomSafer, all rights, title and interest in and to the Software and Service any derivative works of the Software and Service and any copies of the foregoing, and all intellectual property rights related to all of the foregoing, will be owned by ZoomSafer, subject only to the limited license in this Agreement.
9. Compliance with Law. You are responsible for compliance with all federal, state, local and foreign law applicable to your use of the Service and the Software.
10. Term. The Agreement shall commence on the time you click the “accept” button and shall remain effective until terminated in accordance with its terms. Subject to Section 5.d, you may terminate this Agreement immediately upon notice to ZoomSafer. Notice may be provided by following the steps identified in Section 5.d. In addition, we reserve the right to immediately terminate this Agreement, and/or your use of the Software and your access to and use of the Services, at any time and for any reason, with or without cause. Upon termination of this Agreement by either party, your right to use the Software and the Services shall immediately cease, and you shall return to ZoomSafer (or destroy) all copies of the Software and all Confidential Information, including any copies or partial copies thereof, whether made under the terms of this Agreement or otherwise. Sections 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of this Agreement and any payment obligations hereunder, will survive termination of this Agreement.
11. Third Party Applications and Content. The Service requires use of the Software, which is proprietary to ZoomSafer, as well as certain other software provided by third parties, including the device’s, email and SMS programs, dialer, and other applications. The Service sends information that you speak to these applications but does not perform these functions itself. This Agreement applies solely to the Software and does not apply to any such third party software. ZoomSafer is not responsible for any functionality, content, suitability, privacy, support or other attribute of those applications or the content they may request from or deliver to you. All such third party software is licensed individually to you pursuant to license agreements you may have entered into with their respective vendors. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms of the applicable third party license agreements. The Service makes use of a data network operated by the device manufacturer and/or your wireless service provider to send both data and recorded audio from your device to our servers, and to serve information back to you. Depending on your data and messaging plan, you may incur charges from your wireless service provider for use of their networks and/or for specific services such as making phone calls, sending or receiving text messages and/or emails, or other wireless data services. You are solely responsible for any and all costs you incur as a result of your usage of the service.
12. Disclaimer of Warranties. a. THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. ZOOMSAFER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IN ADDITION, ZOOMSAFER SPECIFICALLY DISCLAIMS ANY WARRANTIES AS TO SECURITY, PERFORMANCE, SPEECH RECOGNITION ACCURACY, OR RELIABILITY OF THE SERVICE AND THE SOFTWARE.
b. YOU AGREE THAT YOU USE THE SERVICE AND SOFTWARE AT YOUR OWN DISCRETION AND RISK, AND THAT, WHETHER OR NOT THE SERVICE AND THE SOFTWARE FUNCTION PROPERLY OR AT ALL, YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL HARM AND DAMAGES TO YOU AND OTHERS INCURRED IN CONNECTION WITH USING THE SERVICE WHILE DRIVING (INCLUDING WITHOUT LIMITATION FOR ALL PROPERTY DAMAGE, PERSONAL INJURIES AND DEATH), AND DOWNLOADING, INSTALLING, AND USING THE SOFTWARE. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, EMAIL, VOICE AND ELECTRONIC COMMUNICATIONS. ZOOMSAFER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
c. ZOOMSAFER DOES NOT GUARANTEE THE COMPLETENESS OF EVENT DATA CAPTURED THROUGH THE ZOOMSAFER SERVICE. THE DATA CAPTURED AS PART OF THE ZOOMSAFER SAFETY LOGS FOR BOTH PERSONAL AND BUSINESS USE ARE CAPTURED USING BEST EFFORTS AND MAY BE SUSCEPTIBLE TO DELAYS AS WELL AS MISSING DATA DUE TO HANDSET PERFORMANCE, THE MOBILE NETWORK/COVERAGE AND OTHER SOFTWARE BEYOND OUR CONTROL.
d. THE SPEED SENSING AND AUTOMATIC ACTIVATION FUNCTIONS OF THE SERVICE AND THE SOFTWARE ARE DEPENDENT UPON ONE OR MORE THIRD PARTY SERVICES INCLUDING BUT NOT LIMITED TO THE GPS ON THE MOBILE DEVICE ON WHICH THE SOFTWARE IS LOADED, A BLUETOOTH CONNECTION WITH AN IN-CAR ACCESSORY OR TELEMATICS SYSTEM AND/OR A COMMAND SENT FROM A TELEMATICS PROVIDER TO THE ZOOMSAFER NETWORK SERVICE, AND
1. IF ANY OF THESE ARE NOT FUNCTIONING PROPERLY, OR;
2. IF THE INTERFACES FROM THESE ARE NOT FUNCTIONING PROPERLY, OR;
3. IF THE WIRELESS CARRIER FOR THAT PHONE DOES NOT ALLOW THIRD PARTY ACCESS TO THESE SERVICES, OR;
4. IF THE PHONE IS IN A LOCATION (FOR EXAMPLE BUT NOT LIMITED TO UNDERGROUND AREAS) WHERE THESE SERVICES ARE NOT AVAILABLE, THE AUTOMATIC ACTIVATION FUNCTIONS OF THE SERVICE AND THE SOFTWARE MIGHT NOT AND WILL NOT ACTIVATE AUTOMATICALLY. FOR SAFETY, YOU SHOULD MANUALLY LAUNCH THE APPLICATION PRIOR TO EACH TIME YOU BEGIN TO DRIVE.
e. THE SOFTWARE AND SERVICE MAY BE MADE AVAILABLE THROUGH ONE OR MORE STOREFRONT PORTALS OWNED OR CONTROLLED BY A THIRD PARTY CHANNEL PARTNER OF ZOOMSAFER, OR A SERVICE PROVIDER ASSOCIATED WITH A THIRD PARTY CHANNEL PARTNER OF ZOOMSAFER, (SUCH THIRD PARTY CHANNEL PARTNER AND ANY ASSOCIATED SERVICE PROVIDER, COLLECTIVELY, “CHANNEL PARTNERS”). IN THE EVENT THAT YOU LICENSE THE SOFTWARE AND SERVICE THROUGH CHANNEL PARTNERS, SUCH CHANNEL PARTNERS SHALL HAVE NO LIABILITY WHATSOEVER IN RELATION TO THE SOFTWARE OR SERVICE MADE AVAILABLE THROUGH ITS PORTAL, INCLUDING WITHOUT LIMITATION IN RELATION TO THE SALE, DISTRIBUTION OR USE THEREOF, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE OR SERVICE, AND ALL WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL APPLY TO CHANNEL PARTNERS AS WELL AS ZOOMSAFER. CHANNEL PARTNERS SHALL BE INTENDED THIRD PARTY BENEFICIARIES OF THIS SECTION 11 AND SHALL HAVE THE RIGHT TO ENFORCE ANY AND ALL PROVISIONS OF THIS SECTION 11 TO THE SAME EXTENT AS IF SUCH CHANNEL PARTNERS WERE A PARTY TO THIS AGREEMENT.
f. YOU ACKNOWLEDGE AND AGREE THAT ZOOMSAFER HAS OFFERED THE SERVICE AND THE SOFTWARE, SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATION OF LIABILITY IN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATION OF LIABILITY IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ZOOMSAFER, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATION OF LIABILITY IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ZOOMSAFER. ZOOMSAFER WOULD NOT BE ABLE TO PROVIDE THE SERVICE AND THE SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
13. Limitation of Liability; Exclusion of Damages. ZOOMSAFER’S LIABILITY FOR DAMAGES HEREUNDER (INCLUDING, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) WILL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS (US$100). IN NO EVENT WILL ZOOMSAFER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF THIS AGREEMENT INCURRED BY YOU OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LOST DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties acknowledge that the limitations of liability in this Section and the allocation of risk herein are an essential element of the bargain between the parties, without which ZoomSafer would not have entered into this Agreement. Because some jurisdictions do not allow the exclusion or limitation of liability for certain types of damages incurred by certain parties, all or portions of this limitation may not apply to you.
14. Indemnity. You agree to defend, indemnify and hold harmless ZoomSafer and its employees, officers, directors, shareholders, affiliates, agents, representatives, suppliers and members from and against all claims, losses, costs and expenses (including attorneys fees) arising out of your use of, or activities in connection with the Software and the Service, or any violation of this Agreement by you.
15. Jurisdictional Issues. The Service is controlled and operated by ZoomSafer from the United States, and is not intended to subject ZoomSafer to the laws or jurisdiction of any state, country or territory other than that of the United States. ZoomSafer does not represent or warrant that the Service or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access the Service do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You are also subject to United States and Canadian export controls and are responsible for any violations of such controls, including any United States or Canadian embargoes or other federal rules and regulations restricting exports. Currently, the Software and the Service may not be used outside of the United States and Canada; provided, that ZoomSafer reserves the right to limit the Service’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
16. Privacy Policy. ZoomSafer’s Privacy Policy is available at http://ZoomSafer.com/privacy/, and is incorporated herein by reference.
17. Government Rights. If you are an agency or instrumentality of the United States Government, the Software, including any accompanying documentation, is “commercial computer software” and “commercial computer software documentation” and, pursuant to FAR 12.212 or DFARS 227.720, and their successors, as applicable, use, reproduction and disclosure of the Software are governed by the terms of this Agreement.
18. Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. You acknowledge that a violation of this Agreement may cause irreparable harm to ZoomSafer for which monetary damages would be inadequate, and you therefore agree that, in addition to any other remedies provided by law, ZoomSafer will be entitled to seek injunctive relief against any such violation. This Agreement will be governed by the laws of the Commonwealth of Virginia, without reference to its conflicts of laws provisions. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement and the rights and obligations hereunder may not be assigned or delegated by you without the prior written consent of ZoomSafer and any purported assignment or delegation by you will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. In the event that any of the provisions of this Agreement will be held to be invalid or unenforceable, the remaining portions hereof will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.